WAOW-v-Department for Social Development (DLA) [2012] NICom 287

Decision No:  C1/12-13(DLA)

SOCIAL SECURITY ADMINISTRATION (NORTHERN IRELAND) ACT 1992

SOCIAL SECURITY (NORTHERN IRELAND) ORDER 1998

DISABILITY LIVING ALLOWANCE

Application by the claimant for leave to appeal
and appeal to a Social Security Commissioner
on a question of law from a Tribunal’s decision
dated 24 September 2010

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1.	This is an application for leave to appeal against the decision of the appeal tribunal sitting at Antrim Courthouse on 24 September 2010.

2.	The applicant has requested an oral hearing of the application.  However, I am satisfied that the proceedings can properly be determined without a hearing.

3.	I grant leave to appeal.

4.	However, for the reasons which I give, I am not satisfied that the appeal tribunal has erred in point of law and I disallow the appeal accordingly.

REASONS

Background

5.	The applicant claimed disability living allowance (DLA) on 18 June 2002.  He was awarded the low rate of the mobility component and the middle rate of the care component for an indefinite period from and including that date.  In the claim form, his disabling conditions were stated as being heroin dependence and arthritis.  The reasons for the original award show that it was based on a requirement for accompaniment out of doors and for frequent attention throughout the day in connection with bodily functions.

6.	The Department sent a periodic enquiry form to the applicant which he returned on 25 November 2009.  The applicant indicated continuing heroin addiction and problems with a leg ulcer, and referred to painful wrists.  In a report dated 4 December 2009 his general practitioner (GP) referred to heroin addiction and an ulcer on his left leg from 2008.  An examining medical practitioner (EMP) visited the applicant on 6 January 2010.  She similarly referred to heroin addiction and a leg ulcer.  She carried out a clinical examination of the applicant.  She found no restrictions to the applicant’s mobility and no requirement for attention in connection with bodily functions.  On the basis of this evidence the Department superseded the applicant’s award of DLA on the basis of a relevant change of circumstances, disallowing entitlement from and including 21 January 2010.

7.	The applicant appealed.  A tribunal sitting at Antrim Courthouse on 24 September 2010 heard the appeal.  The applicant attended, represented by Mr F…… of the Democratic Unionist Party.  The tribunal had access to the applicant’s GP records and saw a letter from his substance misuse worker and a psychiatrist appointment letter.  The tribunal disallowed the appeal, holding that there were grounds to supersede the original award and that the applicant had no entitlement to DLA.  The decision was issued to the applicant by post on 29 September 2010.

8.	The applicant wrote a lengthy but relatively incoherent letter to the Appeals Service (TAS) attached to a tribunal appeal pro forma which was received on 7 October 2010, in which he criticised the tribunal’s decision.  The legally qualified member of the appeal tribunal directed that this should be treated as a request for a statement of reasons for the tribunal’s decision.  A statement of reasons was subsequently issued to the applicant on 22 February 2011 together with a record of the tribunal proceedings.

9.	In the meantime, James Ballentine & Son, solicitors, wrote to TAS on 21 February 2011 to indicate that they acted for the applicant, asking when his appeal was to be heard and requesting copies of the tribunal papers.  This enquiry would appear to be based on a misunderstanding of the circumstances or inaccurate instructions from the applicant, as his appeal had been determined five months previously.

10.	On 17 February 2011 a letter was received by TAS from Dr G…., consultant psychiatrist (substance misuse).  TAS is based at Cleaver House, Belfast.  Dr G…..’s letter was addressed to the “Medical Advisor, Disability Living Allowance Offices, Clever [sic] House, Belfast”.  This letter stated that it had been written at the applicant’s request in support of his appeal.  Again this would appear to have been written under the misapprehension that the appeal was still ongoing.  I will return to the content of the letter below.

11.	The applicant then wrote to TAS on 8 March 2011 and his letter was treated as an application for leave to appeal from the legally qualified member of the tribunal.  However, leave to appeal was refused on 15 March 2011, on the basis that no error of law in the tribunal’s decision had been identified, in a determination communicated to the applicant on 29 March 2011.

12.	The applicant then wrote to the Office of the Social Security Commissioners to apply for leave to appeal directly from the Social Security Commissioner in an application dated 11 April 2011 and received on 18 April 2011.

Submissions

13.	The applicant did not present a coherent application for leave to appeal on point of law.  Correspondence was issued to James Ballentine & Son on 6 September 2011 inviting resubmission of the grounds of application for leave in a more conventional manner within a month.  Unfortunately, they have not made any written submissions which might present the applicant’s case in a clear and structured way.

14.	On 8 November 2011, the Department was invited to make observations on the applicant’s grounds of application for leave.  In response to that invitation, Mr Kirk for the Department has helpfully broken the applicant’s written material into the essence of his grounds of application for leave to appeal.  Mr Kirk identifies these as follows:

•	His conditions are severe enough to warrant an award of DLA

•	He has been informed by a specialist that his leg is still not healed

•	The information from his GP was unreliable

•	His appeal was unfair

•	He has been treated differently because he is a member of the travelling community

•	The EMP visit was too quick.

•	The tribunal did not consider the issue of continence.

15.	Mr Kirk then addresses the applicant’s contentions.  In no respect does he accept that the applicant has made out an arguable case that the appeal tribunal has erred in law in determining his appeal.

16.	The observations were sent to the applicant and his solicitors for their comment.  A response was received from the applicant which did not address Mr Kirk’s observations.

Further issue raised by the Department

17.	Mr Kirk addressed a further question, raised by implication in the letter of Dr G…., which was not before the tribunal.

18.	Dr G…….’s letter of 17 February 2011 indicated that the loss of DLA had been a significant factor in a recent increase of the applicant’s drug use and worsening of his depressive symptoms.  Dr G…. indicated that the applicant “is at significant risk of an untimely death, most likely through an accidental or intentional overdose.  (The claimant) has also expressed thoughts of jumping off a bridge”.  He indicated a willingness to provide a more detailed report or to discuss the case with a “Medical Advisor”.

19.	The tribunal was concerned with the question of whether there was a relevant change of circumstances such as to justify a supersession of the applicant’s award of DLA from and including 21 January 2010.  In addressing that question, Article 13(8)(b) of the Social Security (NI) Order 1998 precluded the appeal tribunal from having regard to any circumstances not obtaining at the date of that decision.  The letter of Dr G…. of 17 February 2011 post-dates the appealed decision by over a year.  Therefore, in addition to the obvious fact that it was not before the tribunal, the tribunal would have been legally bound not to take it into consideration to the extent that it concerned matters arising after the decision of 21 January 2011.

20.	Such matters as the risk of intentional self-harm and the increased risk of accidental overdose represented a relevant change in circumstances from the date of the decision disallowing DLA.  This may have given a basis for a fresh claim, but it does not affect the integrity of the tribunal decision.

21.	Arising from the letter, however, Mr Kirk raises the more general question of whether the applicant might require continual supervision due to risk of a drug overdose and whether this was addressed or should have been addressed by the appeal tribunal.  Mr Kirk submits that it is necessary to consider if the evidence before the tribunal indicated that there was any risk of overdosing.

22.	On the basis of the material in the papers before the tribunal, Mr Kirk submits that there was clear evidence that the applicant was at risk of an overdose.  In view of that evidence he submits that it was incumbent on the tribunal to investigate this matter further in order to ascertain if it had any bearing on the applicant’s contended care needs.  By not doing so, he submits the tribunal has failed in its inquisitorial role and as such has erred in law.

23.	Mr Kirk further notes that the letter from Dr G…. clearly indicated that there was a clear danger of self-harm arising from an overdose.  However, he observes that this was received some five months after the date of the appeal tribunal hearing and, by implication, that the tribunal could not be faulted for not having had regard to it.

24.	In response to Mr Kirk’s submission, the applicant’s solicitors wrote on 16 January 2012 to enquire if the applicant’s appeal was now being allowed.  I directed that they should be advised that the Commissioner was not bound to accept any concession by the Department and that no particular outcome could be assumed.  I directed that they should make any further submissions within three weeks.

25.	They responded by sending a photocopy of the applicant’s medical records up to January 2011.  They submitted that the applicant’s view was that his arthritis was worsening day by day, and that he would have difficulty walking short distances and would require to sit down at regular intervals due to his hips clicking, that he would require transport in order to attend both his doctor and his psychiatrist, and that he suffers from nightmares and wakes up trembling.  They asked the Commissioner to have regard to the medical records. 

Assessment

26.	An appeal lies to a Commissioner from any decision of an appeal tribunal on the ground that the decision of the tribunal was erroneous in point of law.  However, the party who wishes to bring an appeal must first obtain leave to appeal.

27.	Leave to appeal is a filter mechanism.  It ensures that only applicants who establish an arguable case that the appeal tribunal has erred in law can appeal to the Commissioner.

28.	An error of law might be that the appeal tribunal has misinterpreted the law and wrongly applied the law to the facts of the individual case, or that the appeal tribunal has acted in a way which is procedurally unfair, or that the appeal tribunal has made a decision on all the evidence which no reasonable appeal tribunal could reach.

29.	It is not an error of law that an appeal tribunal has made a decision based on evidence where a Commissioner, on the same evidence, might prefer a different outcome.  Simply because a Commissioner may disagree with the decision of an appeal tribunal, it does not mean that the appeal tribunal decision is erroneous in point of law.

The applicant’s grounds

30.	The applicant does not present a coherent case, but it is evident that he disputes the findings of fact made by the tribunal and that in essence he is seeking to have the appeal reconsidered on its facts.

31.	I agree with the submissions of Mr Kirk to the effect that the applicant in his various letters has not identified an arguable error of law in the decision of the appeal tribunal.  He raises matters of factual dispute or allegations about the unfairness of the tribunal procedure which are without substance.  In particular, he accuses the tribunal of discrimination against him on the grounds that he is a “traveller”.

32.	From a consideration of the record of proceedings of the appeal tribunal and of the statement of reasons, I am satisfied that there is no merit in any of the grounds raised by the applicant himself.  There is nothing in the papers which would suggest any less favourable treatment of the applicant on the basis of his being a member of the “traveller” community.  His case was decided purely and simply on the merits.

33.	The tribunal has considered the issue of whether there are grounds to supersede the original award, which was one of low rate mobility component and middle rate care component, based on day time attention in connection with bodily functions.  On the basis of the evidence, and in particular the GP and EMP reports, I consider that it was entitled to conclude that there had been a relevant change of circumstances and that there was no entitlement to an award of benefit on the basis on which it had previously been made.  There is no error of law evident in the treatment of the appeal as far as it goes.

The overdose issue

34.	The more difficult matter is the question raised by Mr Kirk on the risk of overdose, and whether the tribunal should have given consideration to the question of any supervision needs the applicant might have.  The point as raised by Mr Kirk is an arguable one and on that basis I grant leave to appeal on this point alone, before going on to consider the merits of the appeal below.

35.	The precise issue before the tribunal was whether there was evidence of a relevant change of circumstances such as to justify a supersession of the applicant’s award of DLA from and including 21 January 2010.  In addressing that question, Article 13(8)(b) of the Social Security (NI) Order 1998 precluded the appeal tribunal from having regard to any circumstances not obtaining at the date of that decision.  The letter of Dr G…. of February 2011 post-dates the appealed decision by over a year.  Furthermore, it expressly links an evident deterioration in the applicant’s health to the decision of 21 January 2010 removing his DLA.

36.	There is no doubt therefore that the evidence of Dr G….. describes a situation which was not obtaining at the date of the decision appealed.  It therefore had to be disregarded to that extent.  The more difficult question is whether any elements of the risks described by Dr G….. were extant at the date of decision and whether they would or should have had any likely influence on the decision made by the appeal tribunal.

37.	It is well established as a matter of law that an appeal tribunal has an inquisitorial role.  However, by Article 13(8)(a) of the Social Security (NI) Order 1998, matters not raised by an appeal need not be considered by an appeal tribunal.  It has further been said by Commissioner Brown in C5/03-04(IB) that a tribunal was not required “to exhaustively trawl the evidence to see if there is a remote possibility of an issue being raised by it”.  However, even if they are not expressly raised by a party, issues “clearly apparent from the evidence” must be considered.

38.	This approach is confirmed by the decision of the Northern Ireland Court of Appeal in Mongan [2005] NICA 16.  In that case, Kerr LCJ accepted that there must be limits to the tribunal’s responsibility to identify and examine issues that have not been expressly raised, and expressed agreement with the observation of Commissioner Brown.  He said that whether an issue is sufficiently apparent from the evidence will depend on the particular circumstances of each case.  How far a tribunal would have to go in exploring such an issue would likewise depend on the specific facts of the case.  The more obviously relevant an issue, the greater will be the need to investigate it.

39.	Mr Kirk submits that the first relevant piece of evidence is the DLA250 periodic enquiry form in which the applicant stated that he has been addicted to heroin for over 20 years.  The GP factual report indicated that the applicant had a long history of heroin abuse, he was on methadone and he regularly attended the community addiction team.  In the EMP report the applicant described a typical day and stated that he might abuse heroin twice per month when he could not cope and that he is taken to the chemist to collect his medication.  The EMP noted that the applicant’s methadone and diazepam was dispensed daily to prevent the applicant abusing it.  This case was then referred to a Departmental medical officer who advised that in their opinion the applicant would not have significant care or mobility needs.

40.	In his first letter of appeal the applicant stated that he received prescribed medication on a daily basis and that he could obtain illicit drugs from friends.  In a second appeal letter received on 10 May 2010 the applicant stated that he was a drug addict and that he would still use heroin.  In a further letter received in TAS on 26 July 2010 the applicant stated that his methadone prescription had been increased as he was taking too much heroin, he had injected himself in the groin and a friend found him on the floor.  The applicant’s substance misuse worker, Mr G……., then submitted a letter of further information.  In that letter Mr G…… indicated that the applicant has continued to struggle with his addiction problems since 2006.  In addition Mr G……. stated that the applicant has made a continued effort to attend all his appointments including those at his local pharmacy.

41.	On the other hand, when I look at the papers, I see that the original claim form completed by the applicant in 2002 specifically indicated no need for supervision to avoid him hurting himself or causing danger to himself.  In the periodic enquiry form completed by the applicant on 23 November 2009, he similarly stated that he had no need of supervision either because he might be a danger to himself or others, be at risk of self-harm, or during activities which might be dangerous.  Dr W…….’s factual report of 4 December 2009 indicated that he had awareness and insight of danger.  The EMP in her report of 6 January 2010 was told by the applicant that he used heroin approximately twice each month, and found him not to be clinically depressed or showing any evidence of self-neglect.  Her opinion was that he had no supervisory needs.

42.	In his appeal letter of 10 February 2010, the applicant mentioned heroin and methadone addiction, but focused primarily on his physical health.  A subsequent letter to the tribunal received on 15 February 2010 referred to drug addiction, but again focused on physical problems and incontinence.  A further letter from the applicant, completed on an appeal form and received on 1 May 2010, referred to the death of a brother, nephew and friends due to heroin and to the danger of injecting himself in the groin, which was necessary as his veins were in such a bad state after 22 years of intravenous drug use.

43.	The applicant’s medical records, which were before the tribunal, have also been provided to me by the applicant’s solicitor and give details of the applicant’s treatment.  They show that the applicant was accepted onto the list of his present GP in October 2003 following the request of the Addiction Unit at H…….. Hospital.  At that time he was already treated by daily methadone and was prescribed diazepam.  He was then aged 36 and had been using heroin from the age of 20.  He was reported as making progress on methadone, but he had to contribute to the cost of his prescription and this led to him stopping methadone.  His partner was similarly commenced on methadone.  The couple had an eight-year old son in their care but no current childcare concerns were reported.

44.	In June 2006 the applicant’s substance misuse worker reported some difficulties that the applicant has been experiencing in his local community and records that he was smoking ½ gram of heroin occasionally and using cannabis heavily on a daily basis.  In addition he had been taking dihydrocodeine – an opiate based painkiller.  His quarterly review meetings were increased in frequency to weekly meetings.  The pattern of increased substance abuse continued into February 2007, when admission to H……… Hospital was declined by the applicant.  The applicant continued to use cannabis heavily but reported no heroin use again until February 2008.  He had reported smoking heroin every two days or so in the month to 9 April 2008.  By May he appeared to be desisting from heroin use again but reported using dihydrocodeine and up to ten cannabis joints per day in July 2008.

45.	He reported using crack cocaine and heroin as a “one-off” in October 2008.  In December 2008 he reported smoking heroin three times in the past month and up to 15 cannabis joints per day.  In January 2009 he reported no heroin use, but smoking up to 20 cannabis joints each day.  Similarly in March 2009 he reported no heroin use, but increased dihydrocodeine and cannabis use in April 2009.  In May 2009 he reported having used heroin twice, smoking one bag each time.  In June 2009 he reported smoking heroin on two occasions in the past four weeks.  He had smoked heroin four times in the four weeks to 18 September 2009, but none in the four weeks to 30 October 2009.  He reported no illicit substance abuse to 11 December 2009 or to 23 December 2009.  He reported smoking heroin on 9 February 2009 but stated a determination to return to prescription medication only.  He reported no heroin use to early April 2010 and he discussed reducing his methadone.  On 23 April 2010 he reported low mood, having smoked one bag of heroin, as his partner was thinking of leaving him, he was under local community pressure and his DLA had stopped.  In the week to 30 April 2010 he reported injecting “a little bit” of heroin into his groin daily.  On 23 July 2010 the applicant reported using one bag of heroin daily, both smoking and injecting.  On 18 August 2010 he reported injecting heroin daily.

46.	The applicant was referred back to Dr G…… at H……… Hospital in September 2010.  Dr G….. reported on 3 November that the applicant failed to attend an appointment on 7 September.  He then attended on 28 September.  Dr G….. noted a marked deterioration in the applicant’s drug and alcohol abuse in recent months.  He reported smoking or injecting heroin on a daily basis from July.  He was encouraged to consider a period of admission to the Addiction Unit to be re-stabilised but he declined.  It was planned to review him on 12 October 2010 but he did not attend.

47.	The applicant’s substance misuse worker, Mr G……, reported on 21 December 2010 that the applicant attends all appointments.  The applicant detailed ongoing difficulties with benefits as the key problem.  He also reported instability in his personal and social circumstances.  He reported daily injection of heroin into his groin.  Despite several attempts to encourage him, the applicant declined to enter the Addiction Service ward for treatment.  Relationships within his family were strained and he continued to struggle with relationships in his local community.

48.	I accept that the medical records and reports present an accurate picture of the applicant’s misuse of illicit drugs.  I accept that the applicant’s admission of drug-taking in meetings with his substance abuse worker is an accurate account.  The various elements of documentary evidence, including the applicant’s letters, are consistent with each other in terms of establishing the extent of his misuse of drugs at various periods over the past few years.

49.	The issue identified by Mr Kirk is, in essence, whether the evidence detailed above was enough to make the issue of supervision obviously relevant in all the circumstances of the appeal.

50.	The tribunal sat on 24 September 2010, with jurisdiction only to look at the circumstances obtaining at the date of the decision made on 21 January 2010.  The relevant evidence showed that the applicant was smoking heroin from time to time up to the date of decision – sometimes as often as weekly, but more often fortnightly and sometimes not for a month or two at a time.  The EMP was aware of this and reported no resulting supervision needs.  Then, from late April 2010, a period which the tribunal was not permitted to consider, the applicant began injecting heroin and by July 2010 was smoking or injecting heroin daily.  This is consistent with the reference to injecting in the applicant’s letter dated 1 May 2010.

51.	Dr G…..’s letter of 17 February 2011 raises the issue of the significant risk of an untimely death, most likely through an accidental or intentional overdose.  I accept that substantial danger can arise for any individual as a result of injecting heroin.  Such danger can include death by accidental overdose or infection by AIDS or hepatitis through the use of shared needles.  The risk of overdose is also present with smoking heroin, but I understand that it is generally regarded as presenting less of a risk as smoked heroin does not enter the body with the same rapidity as in the case of injected heroin.

52.	However, Dr G…..’s letter also raises the risk of an intentional overdose.  This is a rather different issue to accidental overdose.  While the dangers associated with accidental overdose or infection can occur in relation to any heroin user, the risk of intentional overdose is particular to the individual applicant in this case, and to his particular mental state.  Clearly, the possibility of intended self-harm, layered upon the inherent risks of accidental self-harm, increases the level of danger from heroin addiction significantly.

53.	On the issue of risk of an intentional overdose, however, I see nothing in the material before the tribunal, relevant to the period which the tribunal was required to consider, which would give rise to any suggestion of any risk of deliberate self-harm by the applicant.  While a risk of self-harm may well be a factor relevant to the period after 21 January 2010, the tribunal is not in error of law for not considering this aspect, as it was not something which was obvious in any way from the papers or the evidence before them.

54.	I further see nothing in the material which would suggest that the applicant was at risk of harm from accidental overdose as a result of injecting heroin.  He did not resume injecting heroin until late April 2010.  As the tribunal was prevented by its governing legislation from considering circumstances not obtaining at 21 January 2010, the risks associated with injecting heroin were not a matter which they could have been expected to have regard to.

55.	It is arguable that the significant risk inherent in smoking heroin was evident to the tribunal.  However, I consider that this aspect does require some further analysis.  It is clear that smoking, as opposed to injecting, heroin obviates the risks of infection through shared needles.  It further represents a lower risk of accidental overdose than injecting, as it is a slower method of ingesting the drug into the body.  For the purpose of analysis I assume, without formal evidence of the relative dangers of injecting or smoking heroin or assessing the degree of danger which is involved, that smoking heroin can nevertheless give rise to substantial danger.  However, this is a matter for evidence and I emphasise that such a finding has not been made by me.  It may be a matter which requires appropriate expert evidence on a future occasion.

The issue of supervision

56.	The question which Mr Kirk draws attention to arises from the following statutory provisions in the Social Security Contributions and Benefits (NI) Act 1992:

“72.—(1) Subject to the provisions of this Act, a person shall be entitled to the care component of a disability living allowance for any period throughout which—

(a) …;

(b) he is so severely disabled physically or mentally that, by day, he requires from another person—

	(i) …; …

	(ii) continual supervision throughout the day in order to avoid substantial danger to himself or others; or

(c) he is so severely disabled physically or mentally that, at night,—

	(i) …; …

	(ii) in order to avoid substantial danger to himself or others he requires another person to be awake for a prolonged period or at frequent intervals for the purpose of watching over him.”

57.	Having accepted for the purpose of argument that smoking heroin involves substantial danger the key question is whether in order to avoid that danger the applicant reasonably requires continual supervision throughout the day.

58.	The applicant in the present case has been a heroin user for 22 years.  His medical records demonstrate that during that period, and particularly over the past eight years since his brother’s death, he has taken steps to try to control his addiction.  He has been prescribed daily methadone but, as recorded by the appeal tribunal, had reported occasional heroin use during 2009.

59.	The fact of the matter is, however, that at the relevant period the applicant was not smoking heroin throughout the day.  The highest that such a case could be put is that at one or possibly more occasions in the course of the day, he ingested heroin by smoking it and that someone who was at hand could have been alert for any signs of accidental overdose during the first minutes when the drug was entering the applicant’s system.  The possibility of intervention might prevent death through overdose.

60.	Heroin (as diamorphine or other chemical variant) is an illegal Class A substance under the Misuse of Drugs Act 1971.  I very much doubt that public policy could tolerate entitlement to a social security benefit which was based upon the notion of a third party supervising and assisting in the misuse of heroin.  In any event, the facts which were before the tribunal did not warrant a finding that the applicant required continual supervision throughout the day.  While it might have been argued that supervision could have benefitted the applicant during any single episode of ingesting heroin, it is clear that at the material time any supervision was not required to be continual throughout the day.

61.	For this reason I reject the submission of Mr Kirk that the tribunal may have erred in law by failing in its inquisitorial duty to consider the question of the applicant’s supervision needs.  Regardless of whether or not it was an obviously relevant issue, had the tribunal considered the issue of supervision, it would have made no material difference to the outcome of the tribunal hearing.  I therefore dismiss the applicant’s appeal.

(signed):  O Stockman

Commissioner

8 May 2012